Delhi District Court
Smt.Rita Gupta vs Suit No.56/09 Page 1/16 on 25 September, 2010
IN THE COURT OF MS. SWARANA KANTA SHARMA:
JUDGE : MACT : (CENTRAL-DISTRICT) : DELHI.
SUIT NO. 56/09
Unique Case ID No.02401C-0039272009
1.Smt.Rita Gupta,
W/o.Shri Ashok Kumar Gupta,
R/o.480, Biharipur,
Memran, Bareilly.
Presently at :
A-103, Yojna Vihar,
Delhi-110092. ........(Mother)
2.Ashok Kumar Gupta,
S/o.Shri G.R.Gupta,
R/o.480, Biharipur,
Memran, Bareilly.
Presently at :
A-103, Yojna Vihar,
Delhi-110092. ........(Father)
.......Petitioners
Versus
Suit No.56/09 Page 1/16
1. M/s.Reliance General Insurance Co. Ltd.,
D-93, Second Floor,
Okhla Phase-I,
New Delhi-110020. ........(Insurer)
2. Shri Mustak,
S/o.Shri Mohd.Khan,
Village Sastri Park,
District Kanpur,
U.P. ........(Driver)
3. Shri Sanjeev Kumar,
S/o.Shri Raj Pal Singh,
B-3, Sector 9, Vijay Nagar,
Ghaziabad,
(UP). ........(Owner)
.......RESPONDENTS
Date of Institution of the suit : 12/01/2009
Date of reserving judgment/order : 25/09/2010
Date of pronouncement : 25/09/2010
JUDGMENT
1. The present claim petition has been filed by the petitioners Suit No.56/09 Page 2/16 u/s.166 and 140 of Motor Vehicle Act.
2. Brief facts giving rise to the present claim petition are that on 05/11/2008 at 7.45 am, near Gate no.6 of BETA II Opp. Somerville School, Police Station Kasna, Distt. Gautam Budh Nagar, UP, the deceased was walking on the road on foot. She was hit from the backside by a bus bearing registration no.DL 1P 1292 driven by respondent no.2 in rash and negligent manner. She was taken to Kailash Hospital and Sir Ganga Ram Hospital. However, she had succumbed to her injuries on 18/11/2008.
3. Written statement was filed by respondent no. 1, M/s.Reliance General Insurance Co. Ltd. wherein it is stated that petitioners have not come to the court with clean hands. However, respondent no.1, M/s.Reliance General Insurance Co. Ltd. has not disputed that the offending vehicle was insured with them as on the date of accident.
4. On the pleadings of the parties, following issues were settled:-
(i). Whether the deceased Smt.Neha Aggarwal had died due to the injuries sustained by him in an accident which took place on 05/11/2008 because of rash and negligent driving of vehicle bearing no.DL 1P A 1292 by respondent no.2?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?Suit No.56/09 Page 3/16
(iii) Relief.
5. During the course of proceedings, respondents no.2 and 3 were proceeded ex-parte vide order dated 02/09/2009.
6. Petitioners have examined two witnesses in support of their claim.
7. PW-1 Smt. Rita Gupta, who is petitioner no.1 and mother of the deceased tendered in evidence her examination-in-chief by way of affidavit Ex.PW-1/A and stated therein that on 05/11/2008 at 7.45 am, near Gate no.6 of BETA II Opp. Somerville School, Police Station Kasna, Distt. Gautam Budh Nagar, UP, the deceased was walking on the road on foot. She was hit from the backside by a bus bearing registration no.DL 1P 1292 driven by respondent no.2 in rash and negligent manner. She was taken to Kailash Hospital and Sir Ganga Ram Hospital. However, she had succumbed to her injuries on 18/11/2008.
She further stated that deceased was holder of B.Tech Degree in Electronics and Communication Engineering from UP Technical University Lucknow and had been selected from Campus itself as Software Engineer by M/s.HCL Technologies Ltd., Noida. She had been offered package of Rs.3 lacs per annum and she was also entitled to Rs.18,000/- per month for three months during the training period.
She further stated that the deceased was unmarried and was 24 Suit No.56/09 Page 4/16 years 5 months of age at the time of accident.
She had been treated at Kailash Hospital and Sir Ganga Ram Hospital where an amount of Rs.6,78,220/- had been spent on her medical treatment. She had sustained severe injuries on the right thigh, right foot and right forearm.
She further stated that FIR no. 461 dated 6/11/08 under section 279/338 IPC and 134 Motor Vehicles Act has been registered at Police Station Kasna, Distt. Gautam Budh Nagar, UP against Respondent no.2.
She stated that petitioners are the only Legal Heirs of the deceased.
She has proved on record photocopy of High School Examination certificate in the name of Neha Aggarwal Ex.PW-1/1, photocopy of Final Year Marksheet of B-Tech of the deceased Ex.PW- 1/2, Offer letter of M/s.HCL Technologies in the name of Neha Aggarwal Ex.PW-1/3, photocopy of driving licence in the name of Neha Aggarwal Ex.PW-1/4, photocopy of PAN Card in the name of Neha Aggarwal Ex.PW-1/5, photocopy of Voter I-card in the name of Neha Aggarwal Ex.PW-1/6, photocopy of Ration Card Ex.PW-1/7, medical bills of Kailash Hospital Ex.PW-1/8, photocopy of medical bills of Ganga Ram Hospital alongwith death certificate, postmortem report in the name of Neha Aggarwal Ex.PW-1/9 and certificate issued by Bank of Baroda qua loan taken by the deceased Ex.PW-1/10.
On being cross-examined by respondent no.1, Insurance Company, she stated that she is not eyewitness to the accident. The deceased was unmarried at the time of accident. She is 54 years old.
Suit No.56/09 Page 5/168. PW-2 Shri Ashok Kumar Gupta, who is petitioner no.2 and father of the deceased tendered in evidence his examination-in-chief by way of affidavit Ex.PW-2/A and stated similar facts regarding the date, time and manner of accident as stated by PW-1 Smt.Rita Gupta.
On being cross-examined by respondent no.1, Insurance Company, she stated that she is not eyewitness to the accident. The deceased was unmarried at the time of accident. He is 60 years old.
9. Ld.counsel for petitioners has tendered in evidence certified copies of charge sheet, site plan, FIR, technical inspection report, postmortem examination report, death summary and original complaint as Ex.P-1 to Ex.P-7.
10. Thereafter, petitioner's evidence was closed.
11. Respondent no.1, Insurance Company did not examine any witness to controvert the claim of the petitioners. Therefore, respondent's evidence was closed.
12.ISSUE NO.1 Whether the deceased Smt.Neha Aggarwal had died due to the injuries sustained by him in an accident which took place on 05/11/2008 because of rash and negligent driving of vehicle bearing Suit No.56/09 Page 6/16 no.DL 1P A 1292 by respondent no.2?
The petitioners have filed on record certified copy of FIR as well as certified copies of the challan. Police investigation has concluded that the accident, in this case, has taken place due to rash and negligent driving of respondent no. 2, who is driver of the offending vehicle and who is accused in the criminal case filed by the police.
The postmortem report, on the other hand, also reflects that the injuries are of the nature which could have been caused due to injuries sustained in road traffic accident.
Therefore, the testimony of PW-1 and PW-2 considered alongwith the other documents i.e. the charge sheet, FIR registered in this case, postmortem report, I am of the opinion that deceased Neha Aggarwal had died in road traffic accident due to involvement of bus bearing registration No.DL 1PA 1292 driven by respondent no.2 in rash and negligent manner.
It is therefore prima facie clear that the accident in the case had taken place with the offending vehicle driven by respondent no.2 due to his rash and negligent driving causing death of the deceased.
Hence, issue no.1 is decided against the respondents.
13.ISSUE NO.2:
Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Onus to prove this issue was also on the petitioners. PW-1 i.e. Suit No.56/09 Page 7/16 Petitioner no.1 and PW-2 i.e. Petitioner no.2 in their evidence have stated that they are the only legal heirs of deceased. Petitioners no.1 is mother of the deceased and petitioner no. 2 is father of the deceased. No contrary evidence has been led by respondents to rebutt the claim of petitioners. Therefore, testimony of petitioners have remained unrebutted and uncontroverted.
Since, issue no.1 has been decided in favour of the petitioners that the deceased had died due to the injuries sustained by her in the accident, petitioners are entitled to compensation under the Motor Vehicle Act.
14.MEDICINES AND MEDICAL TREATMENT.
The petitioners have filed on record medical treatment record and medical bills in the sum of Rs.6,28,220/- which have not been disputed by the Insurance Company and no contrary evidence has been brought on record by ld.counsel Company. Therefore, I am inclined to grant a sum of Rs.6,28,220/- to the petitioners towards cost of medicines and medical treatment.
15.LOSS OF FINANCIAL DEPENDENCY.
Ld.counsel for the Insurance Company stated that there is no financial dependence of the petitioners on the deceased i.e. their daughter and therefore, nothing be awarded under this head and have stated that there is no actual income of the deceased and therefore minimum wages be the criteria to assess compensation.
Suit No.56/09 Page 8/16Ld.counsel for Insurance Company further stated that deceased was unmarried daughter of the petitioners and they cannot be financially dependent on her since she would have eventually got married and even otherwise parents cannot be presumed to be dependent on their daughters.
I do not agree with the contention of ld.counsel for Insurance Company since this argument is not only contrary to the modern social changing realities but holding such view will amount to being biased towards a particular gender. There is no written law either socially or otherwise that a daughter cannot look after her parents in their old age. Neither it will be appropriate to presume and conclude that every girl after marriage will stop looking after her parents or that every girl will have to get married. It is an individual choice. The deceased in this case was a girl of high merit. She had studied Engineering and while studying, from the Campus itself, she had been offered a job letter by M/s.HCL Technologies and was offered a package of Rs.3,00,000/- per annum after the training period. It will be unjust for a Court to hold contrary views and pass contrary orders in the case of death of a son or a daughter. There are no less cases where even the sons do not look after their old parents and there are no less cases where the daughters remaining unmarried or even after marriage keep looking after their age old parents. I, therefore, dismiss this contention of ld.counsel for Insurance Company and hold that the compensation in such cases is for the old age probabilities of the parents and the fact that a precious young life which has been lost would have stood by them in their old Suit No.56/09 Page 9/16 age.
I find this contention of the ld.counsel for Insurance Company a little contrary to the actual realities of life. The petitioners have clearly mentioned in their statements that the deceased who was their daughter and was a student of B.Tech in Electronics and Communication Engineering from UP Technical University Lucknow at the time of accident. At the time of her death, the deceased had already completed her studies and was working as a trainee. They have also proved the offer letter of M/s.HCL Technologies offering Rs.18,000/- per month during the training period itself.
In the absence of any proof of earning, it is always difficult for the Tribunal to assess the loss of financial dependency. But it will be equally unfair to assess loss of financial dependency on the basis of minimum wages in such cases as present case where ignoring achievements of the deceased, to my mind will be unfair. To presume that a young woman of such merit as discussed in the preceding paragraphs would have started her career as an Engineer with minimum wages or would not have been able to complete her training will be wrong. The deceased as per the record produced before me even at the time of her death was of high merit that I deem it appropriate to conclude that having concluded her studies and having become an Engineer, the deceased would have found a decent job on the basis of her high academic achievements. Rather she had already got a job starting as a trainee with salary of Rs.18,000/- per month with M/s.HCL Technologies.
Suit No.56/09 Page 10/16As there is no proof, about earnings of the deceased, the Tribunal taking a practical approach will consider as to what an Engineer with the high merit as of the deceased would have earned in the beginning of her career and how much she would have progressed according to her age and Sarla Verma's Judgement. An Engineer on an average in the beginning of her career these days with the merit as of the deceased would have easily got a job beginning with Rs.25,000/- per month which makes the annual income as Rs.3,00,000/-. Therefore, I will consider the monthly income of the deceased to be Rs.25,000/-.
The deceased was unmarried at the time of accident. In the present case, it has not come on record that the father of the deceased was financially dependent on her which means he was having his own income. In the recent judgment of "Smt. Sarla Verma and others Vs. Delhi Transport Corporation, CA 3483 of 2008, SC, it has been categorically laid down by the Hon'ble Supreme Court that in the case of the death of a bachelor, unless there is evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. Hence, the compensation in this case is for the old age probabilities when they may get dependent on their daughter and for the loss of a precious young life.
It has been further laid down that in such case 50% will be deducted towards personal expenses of the deceased. It is also laid down in this judgment that normally 50% is deducted towards personal and living expenses in case of a bachelor since it is assumed that a Suit No.56/09 Page 11/16 bachelor tends to spend more on herself, even otherwise there is also possibility of her getting married in short time in which case the contribution to the parents and siblings is likely to be cut drastically.
Therefore, monthly contribution of the deceased towards his family will be 50% of Rs.25,000/- which comes to Rs.12,500/-.
Petitioners are parents of the deceased. In the judgment of New India Assurance Company Ltd. Vs. Shanti Pathak reported as III (2007) ACC 505 (SC), it has been held that multiplier to be adopted is to be determined on the basis of age of claimant and not age of deceased. During cross examination by ld.counsel for respondent no.1, Insurance Company, PW-1 i.e. Mother of the deceased stated that she is 54 years of age which is not disputed by ld.counsel for Insurance Company and even no contrary evidence has been filed on record by ld.counsel for Insurance Company. Hence, multiplier of 11 as per the judgment of Smt.Sarla Verma Vs. Delhi Transport Corporation, CA 3483 of 2008, SC is to be applied.
Therefore, total annual loss of financial dependency accordingly will be Rs.12,500/- x 12 x 11 which comes to Rs.16,50,000/-. Therefore, the total loss of dependency will be Rs.16,50,000/-.
16.LOSS OF LOVE AND AFFECTION.
No amount of compensation can compensate the loss of a young daughter to her parents. No amount of money can wipe the tears, Suit No.56/09 Page 12/16 the trauma of the petitioners and the feeling that the petitioners must be feeling each day having lost their young daughter. The Trauma is for the lifetime. As per Sarla Verma's Judgement, the Tribunal can grant compensation for loss of love and affection upto only Rs.10,000/-. Therefore, I am inclined to grant a sum of Rs.10,000/- to the petitioners for loss of love and affection.
17.FUNERAL EXPENSES.
Rs.5,000/- is awarded to the petitioners on account of funeral expenses.
18.LOSS TO ESTATE.
I award Rs.5,000/- on account of loss to estate to petitioners.
19.RELIEF.
In view of my finding on issue no.1 and 2, the petitioners are awarded following compensation:-
Medicines and Medical Treatment Rs.6,28,220/-
Loss of financial dependency Rs.16,50,000/-
Loss of love and affection Rs.10,000/-
Funeral Expenses Rs.5,000/-
Loss to Estate Rs.5,000/-
Total Rs.22,98,200/-
Suit No.56/09 Page 13/16
20. Petitioners are therefore entitled to compensation of Rs.22,98,220/-. Petitioners are also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 12.01.2009 till its realization.
Out of the said compensation, petitioner no. 1/Smt.Rita Gupta being mother of the deceased is entitled to a sum of Rs.11,49,110/- with 7.5% interest as stated above. Out of this amount, a sum of Rs.50,000/- be given in cash to petitioner no.1 and out of remaining amount of Rs.10,99,110/-, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of one year, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of two years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of three years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of four years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of five years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of six years and Rs.1,99,110/- be deposited in the form of FDR with any nationalized bank for the period of seven years without the facility of advance/ loan or withdrawal. However, petitioner no.1 will be entitled to monthly or quarterly interest as applicable.
Petitioner no. 1/Sh.Ashok Kumar Gupta being father of the deceased is entitled to a sum of Rs.11,49,110/- with 7.5% interest as stated above. Out of this amount, a sum of Rs.50,000/- be given in cash to petitioner no.2 and out of remaining amount of Rs.10,99,110/-, Suit No.56/09 Page 14/16 Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of one year, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of two years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of three years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of four years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of five years, Rs.1,50,000/- be deposited in the form of FDR with any nationalized bank for the period of six years and Rs.1,99,110/- be deposited in the form of FDR with any nationalized bank for the period of seven years without the facility of advance/ loan or withdrawal. However, petitioner no.2 will be entitled to monthly or quarterly interest as applicable.
21. Respondent no.1 being insurer, respondent no.2 being driver and respondent no.3 being owner of the offending vehicle are jointly and severely liable to make the payment of compensation to petitioners.
22. Respondent No.1, Insurance Company is directed to directly deposit the award amount with the Nodal Officer of State Bank of India, Tis Hazari Court Branch, Delhi within 30 days. Insurance Company/driver/owner are also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimants and the calculation of interest in the Court within 30 days from today.
In case the Insurance Company fails to do so, General Manager Suit No.56/09 Page 15/16 of Insurance Company will file reasons for non-compliance.
In case of further delay the Insurance Company will deposit the cheque alongwith the cost of Rs.5,000/- without any further directions as per Judgment of New India Assurance Company Ltd. Vs. Kashmiri Lal, 2007 ACJ 688. Nazir will report to the undersigned if the cheques in this case are not received within 30 days of passing of this Judgement. Nazir to note the particulars of the award amount etc. in his register today. Copy of the order be given dasti to respondent no.1 for compliance and copy of this order and information be also sent to General Manager of Insurance Company.
The petitioners will file two sets of photographs alongwith his specimen signatures out of which one set be sent to the Nodal Officer of the Bank alongwith copy of the award by the Nazir and the second set shall be retained in the Court for future reference. The photographs be got stamped and be sent to the Bank. The proof of residence and details of the bank account be also provided by the petitioners within seven days to the Nazir.
File be consigned to Record Room.
Announced in open court (SWARANA K.SHARMA) on 25/09/2010. JUDGE : MACT : DELHI Attested copy prepared by the Reader and given to Ahlmad today itself Suit No.56/09 Page 16/16 Suit No.56/09 Page 17/16